DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Application Status
Claims 26-28, 31-38, 40-42, 44-47 and 49-57 are pending.
Claims 27-28, 36, 41-42, 47 and 50-51 remain withdrawn.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 26, 31-35, 37-38, 40, 44-46, 49 and 52-57 are rejected under 35 U.S.C. 103 as being unpatentable over Bugiani (EP-2359693-A2) in view of Shah (US-20130345052-A1).
In regard to claim 26, Bugiani discloses a synergistic (e.g. composition has shown a surprising synergical effect) [para. 0053] water dispersible (e.g. suspended and solvated components in water) [0032] composition for soil application (e.g. applied to plants cultivated in a pot) [examples], the synergistic water dispersible granular composition comprising:
elemental sulphur (e.g. elementary sulphur) [0013] in a range of at least 20 wt% up to 80 wt% [0014], with respect to the overall weight of the composition;
at least one amino acid or mixtures thereof in a range of 12 wt% up to 60 wt% [0020; 0021] with respect to the overall weight of the composition, wherein the at least one amino acid is selected from alanine, arginine, aspartic acid, glutamic acid, hydroxypiroline, histidine, isoleucine, leucine, methionine, phenylalanine, serine, threonine, tyrosine, and valine [0022]; and
at least one agrochemically acceptable excipient (e.g. carbonate or bicarbonate component) [0017] in a concentration of at least 15 wt% up to 38 wt%, with respect to the overall weight of the composition [0018].
Bugiani discloses a composition in solid form, for example in the form of a powder or granule [0031], exemplifying a wettable powder [examples]. The reference does not explicitly teach wherein the composition is in the form of a granule comprising the elemental sulfur co-milled with the at least one agrochemically acceptable excipient wherein the granules disperse into particles having a size in the range of 0.1-20 microns.
Shah, drawn to the same filed of endeavor as the claimed invention (e.g. agricultural composition comprising an effective amount of sulphur and an agrochemically acceptable excipient) [abstract], describes a composition which can be in the form of a water dispersible granules, wettable powders or broadcast granules [0029]. Broadcast granules are described as in the size range of 0.75 mm to 5 mm, comprising particles in the size range of 0.2 µm 50 µm [0032]. The components of the granules are milled to obtain an average particle size preferably between 1 µm 15 µm and the powder can be made into broadcast granules [0050]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to formulate Bugiani’s wettable powder via co-milling the components and forming into a dispersible granule as described by Shah because Bugiani already contemplates the solid granule formulation. One of ordinary skill in the art would have been motivated to formulate a co-milled granule composition for ease of application (e.g. broadcast granule fertilization involves the ability to spread fertilizers uniformly over the soil surface using standard agricultural spreaders) with a high level of dispersibility (e.g. the dispersibility of the composition is greater than 75%) [0040].
In regard to claims 31-34, Bugiani in view of Shah disclose the synergistic water dispersible granular composition as claimed in claim 26. While Bugiani does not explicitly teach wherein the composition further comprises at least one micronutrient, their salts, derivatives or mixtures thereof present in a concentration of 0.1 %-70% by weight of the total composition, Shah describes that there is a need to apply sulphur as well as zinc in the early stages of the plant cycle [0005]. Shah’s composition comprises zinc in water-soluble form (e.g. zinc sulphate) [0021] in the range of 2% to 20% of the total composition [0020]. Shah discloses the amino acid component in a range of 12 wt% up to 60 wt% [0020; 0021] with respect to the overall weight of the composition and therefore the molar ratio of amino acids to metal ions of water soluble micronutrient would overlap with the claimed range of 2:1 to 38:1 in a combined composition. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include a zinc micronutrient component in Bugiani’s sulphur-containing composition to achieve this synergistic effect at the early stages of plant growth of providing the required S and Zn nutrients.
In regard to claim 35, Bugiani in view of Shah disclose the synergistic water dispersible granular composition as claimed in claim 26, wherein a ratio of sulphur to amino acid overlaps the claimed range of 990:1 to 3.5:1 (e.g. elemental sulphur in a range of at least 20 wt% up to 80 wt% and amino acid or mixtures thereof in a range of 12 wt% up to 60 wt% equates to a ratio of a ratio of sulphur to amino acid from about 7:1 to 0.3:1) [0014; 0020; 0021].
In regard to claims 37-38, Bugiani in view of Shah disclose the synergistic water dispersible granular composition as claimed in claim 26, further comprising at least one plant growth promoter (e.g. an extract of Ascophyllum nodosum) [0027] or pesticidal active (e.g. fungicidal agent) [0046], wherein the plant growth promoter is present in a concentration of 0.1-60% w/w of the total composition (e.g. at least 5 wt% up to 15 wt%, with respect to the overall weight of the composition) [0028], wherein extract of Ascophyllum nodosum inherently contains natural auxins such as indole-3-acetic acid or indole-3-butyric acid.
In regard to claim 40, Bugiani in view of Shah disclose the synergistic water dispersible granular composition as claimed in claim 26, wherein the at least one agrochemically acceptable excipient is a buffer or pH adjuster or neutralizing agent (e.g. potassium bicarbonate) [0018].
In regard to claims 44-45, Bugiani in view of Shah disclose the synergistic water dispersible granular composition as claimed in claim 26, with a high level of dispersibility (e.g. the dispersibility of the composition is greater than 75%) [Shah; 0040] and wherein the sulphur remains suspended [Bugiani; 0032], wherein sulphur is in a range of at least 20 wt% up to 80 wt% [Bugiani; 0014]
In regard to claim 46, Bugiani in view of Shah disclose the synergistic water dispersible granular composition as claimed in claim 26 with a high level of dispersibility (e.g. the dispersibility of the composition is greater than 75%) [Shah; 0040]. The co-milled granular product remains dispersed after 30 minutes [Shah; 0047]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed that the prior art composition would exhibit a wettability in less than 2 minutes due to the high dispersibility demonstrated.
In regard to claims 49 and 52, Bugiani in view of Shah disclose the synergistic water dispersible granular composition as claimed in claims 26 and 31. Bugiani discloses a composition in solid form, for example in the form of a powder or granule [0031], exemplifying a wettable powder [examples]. The reference does not explicitly teach wherein the composition is formed by milling a blend of the sulphur and amino acid and the at least one agrochemically acceptable excipient wherein the granules disperse into particles having a size in the range of 0.1-20 microns.
Shah, drawn to the same filed of endeavor as the claimed invention (e.g. agricultural composition comprising an effective amount of sulphur and an agrochemically acceptable excipient) [abstract], describes a composition which can be in the form of a water dispersible granules, wettable powders or broadcast granules [0029], wherein the wettable powder is considered a slurry or wet mix and pellatization necessarily involves a step of drying the mixture as would be understood by one of skill in the art. Broadcast granules are described as in the size range of 0.75 mm to 5 mm, comprising particles in the size range of 0.2 µm 50 µm [0032]. The components of the granules are milled to obtain an average particle size preferably between 1 µm 15 µm and the powder can be made into broadcast granules [0050]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to formulate Bugiani’s wettable powder via co-milling the components and forming into a dispersible granule as described by Shah because Bugiani already contemplates the solid granule formulation. One of ordinary skill in the art would have been motivated to formulate a co-milled granule composition for ease of application (e.g. broadcast granule fertilization involves the ability to spread fertilizers uniformly over the soil surface using standard agricultural spreaders) with a high level of dispersibility (e.g. the dispersibility of the composition is greater than 75%) [0040]. Regarding claim 52, milling further comprising at least one micronutrient, their salts, derivatives or mixtures thereof, Shah describes the milling of the mix of sulphur and zinc [0050].
In regard to claim 53, Bugiani in view of Shah disclose the synergistic water dispersible granular composition as claimed in claim 26, wherein the composition is a nutrient composition (e.g. containing sulphur and potassium cation as nutrients) [0013].
In regard to claim 54, Bugiani discloses a method of improving plant health or yield, the method comprising treating at least one of a plant (e.g. treatment by wetting the plants) [0089], with the composition as claimed in claim 26, as made obvious by the combination of Bugiani and Shah above.
In regard to claim 55, Bugiani discloses a synergistic (e.g. composition has shown a surprising synergical effect) [para. 0053] water dispersible (e.g. suspended and solvated components in water) [0032] composition for soil application (e.g. applied to plants cultivated in a pot) [examples] comprising:
elemental sulphur (e.g. elementary sulphur) [0013] in a range of at least 20 wt% up to 80 wt% [0014], with respect to the overall weight of the composition;
at least one amino acid or mixtures thereof in a range of 12 wt% up to 60 wt% [0020; 0021] with respect to the overall weight of the composition, wherein the at least one amino acid is selected from lycine, glycine and proline [0022]; and
at least one agrochemically acceptable excipient (e.g. carbonate or bicarbonate component) [0017].
Bugiani discloses a composition in solid form, for example in the form of a powder or granule [0031], exemplifying a wettable powder [examples]. The reference does not explicitly teach wherein the composition is in the form of a granule comprising the elemental sulfur co-milled with the at least one agrochemically acceptable excipient wherein the granules disperse into particles having a size in the range of 0.1-20 microns.
Shah, drawn to the same filed of endeavor as the claimed invention (e.g. agricultural composition comprising an effective amount of sulphur and an agrochemically acceptable excipient) [abstract], describes a composition which can be in the form of a water dispersible granules, wettable powders or broadcast granules [0029]. Broadcast granules are described as in the size range of 0.75 mm to 5 mm, comprising particles in the size range of 0.2 µm 50 µm [0032]. The components of the granules are milled to obtain an average particle size preferably between 1 µm 15 µm and the powder can be made into broadcast granules [0050]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to formulate Bugiani’s wettable powder via co-milling the components and forming into a dispersible granule as described by Shah because Bugiani already contemplates the solid granule formulation. One of ordinary skill in the art would have been motivated to formulate a co-milled granule composition for ease of application (e.g. broadcast granule fertilization involves the ability to spread fertilizers uniformly over the soil surface using standard agricultural spreaders) with a high level of dispersibility (e.g. the dispersibility of the composition is greater than 75%) [0040].
In regard to claim 56, Bugiani in view of Shah disclose the synergistic water dispersible granular composition as claimed in claim 55, further comprising one or more additional amino acids selected from alanine, arginine, aspartic acid, glutamic acid, hydroxypiroline, histidine, isoleucine, leucine, methionine, phenylalanine, serine, threonine, tyrosine, and valine [0022].
In regard to claim 57, Bugiani in view of Shah disclose the synergistic water dispersible granular composition as claimed in claim 26, further comprising one or more additional amino acids selected from selected from lycine, glycine and proline [0022].
Response to Arguments
Applicant’s arguments, filed 06/10/2026, with respect to the rejection of the claims based on the teaching of the Pedersen prior art have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. Applicant’s amendments necessitated the new ground or rejection.
The declaration under 37 CFR 1.132 filed 06/10/2026 is insufficient to overcome the rejection of the claims based upon prior art references because it refers only to the system described in the above referenced application and not to the individual claims of the application. Declarants' tests utilize elemental sulfur with specific amino acid or protein components. There is no basis in this data for predicting the relative performance of at least one amino acid, polyamino acids derived from the at least one amino acid, protein hydrolysate, derivatives of the at least one amino acid, or mixtures thereof in a range of 0.1-70% w/w of the total composition, wherein the at least one amino acid is selected from alanine, arginine, aspartic acid, asparagine, citrulline, leucine, isoleucine, cysteine, glutamic acid, glutamine, gaba-aminobutyric acid, histidine, methionine, ornithine, phenylalanine, serine, selenocysteine, valine, taurine, tyrosine, theanine, threonine, and tryptophan. Declarant’s results illustrate grain yield utilizing one of isolated amino acids or protein hydrolysates in specific amounts at 5000 g/acre. Accordingly, the evidence of unexpected results is not commensurate in scope with the breath of the claims (e.g. 23 types of amino acids, their polymers, derivatives and protein hydrolysate).
For these reasons Applicant's arguments filed 05/10/2026 have been fully considered but they are not persuasive.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/JENNIFER A SMITH/Primary Patent Examiner, Art Unit 1731 June 24, 2026
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